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Judgment
Fazl Ali, J.—These appeals are directed against the decrees passed by the Subordinate Judge of Gaya in Suits Nos. 46 and 47 of 1929. Suit No. 46 relates to 1752 bighas of land in mahal Balkhara Tauzi No. 299 in the district of Gaya which were formerly the occupancy kasht of one Mr. G. L. Solano but were transferred by the latter to the defendants by a registered sale deed dated 28th February 1909. Suit No. 47 relates to 819 acres (or about 1300 bighas) of kasht lands which are situated in the same mahal and were purchased by the defendants between 1893 and 1921 at various auction sales held in execution of either rent or money decrees obtained by them against certain tenants who held them in ''occupancy right. The plaintiff who holds a six annas interest in mokarrari right in mahal Belkhara claims that she is entitled to joint possession of these lands with the defendants who hold the remaining ten annas in mokarrari right. The plaintiff further claims to be entitled to recover from the defendants her share of the profits made by the latter from the aforesaid lands from the beginning of the year 1333 Fs. to 1336 Fs. and in the alternative to recover fair and equitable rent for the period. For the purpose of estimating the amount of profits or rent chargeable) in respect of the disputed lands, the plaintiff has attached to the plaint a statement showing in detail the rents which are actually received by the defendants from a number of tenants who have been inducted on the lands by them after their purchase and her case is that she is entitled to a six annas share in the total sum collected by the defendants during the period in suit.
The defendants'' case in the Court below was that the disputed lands were transferable by custom; that even if they were not transferable, their transfer had been acquiesced in and recognized in various ways by the plaintiff''s predecessor-in-interest or his representative and that accordingly they were entitled to hold the lands u/s 22(2), Ben. Ten. Act. They also pleaded limitation and estoppel and contended that the plaintiff was entitled only to a share of the original rent which used to be paid by the occupancy tenants before the lands were transferred to them (the defendants). It may be noted here ''that apart from being mokarraridars of a ten annas interest in mahal Balkhara the defendants were also in possession of the -six annas interest of the plaintiff from 1887 to 1925 by virtue of several thika leases granted to them successively by the plaintiff''s predecessor.in-interest. The defendants had also in their turn granted a sub-lease of the whole 16. annas interest to various persons from time to time and one of the points which was raised on their behalf in the Court below was that their right to hold the land u/s 22(2), Ben. Ten. Act, had been recognized by these sub-lessees. This plea, however, as well as almost all the other principal pleas raised on behalf of the defendants have been rejected by the Subordinate Judge, who has held that on payment of six-sixteenths of the present value of the disputed lands to the defendants the plaintiff is entitled to joint possession of those lands with them and also to recover her share of the rents on which those lands have been settled with the present tenants. As to mesne profits, he has held that the plaintiff''s claim for the year 1333 is barred but she is entitled to recover her share in the profits for the years 1334-1336 calculated at the rates mentioned in the schedule attached to the plaint.
The defendants now challenge the decrees passed by the Subordinate Judge by means of these appeals and the plaintiff has filed cross-objections. The main points taken in the memorandum of cross-objections are (1) that the claim for mesne profits for the year 1333 is not barred and (2) that the learned Subordinate Judge was wrong in passing a conditional decree under which the plaintiff cannot recover joint possession, unless she pays to the defendants 6/l6ths of the present value of the disputed lands. It may be mentioned here that since the decision of these suits by the learned Subordinate Judge the provincial legislature has passed a new Tenancy Act, and it has not been disputed before us that if the interpretation put by the appellants on Section 26-N of that Act is correct, it will not be necessary to deal with most of the points which were raised before the Subordinate Judge and which have been discussed by him at great length in his elaborate judgment. This section provides that:
Every person claiming an interest; as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion by sale, exchange, gift or will made before 21st day of January 1923.
The language of this section is plain, and there can be no doubt that it was intended to be retrospective in operation, the object of the Legislature being to quiet titles which are more than 10 years old. It is also now beyond controversy that this provision applies even to holdings which at the date of the commencement of the Act are in question in a pending suit. This view has been expressed in the clearest possible terms by the Judicial Committee of the Privy Council in AIR 1936 49 (Privy Council) where their Lordships observe as follows:
The Act contains no saving clause modifying the effect of Sections 26-N and 26-O. In these circumstances it appears to their Lordships that unless some saying can be implied as regards occupancy holdings which at the date of the commencement of the Act are in question in a pending suit, Section 26-N must be applied to the present case and the plaintiff''s appeal roust fail in limine. Their Lordships are of opinion that no such saving can be implied. Section 26-N is not a provision to the effect that no action shall lie in certain circumstances, nor has it any reference directly to litigation.... The object of this section can only be to quiet titles which are more than 10 years old and to ensure that if during those 10 years the transferee has not been ejected he shall have the right to remain on the land. Within this class the legislature has not thought fit to discriminate against tenants whose right is under challenge in a suit, a course which it may well have regarded as invidious or unnecessary. As substantive rights of landlords and their accrued causes of action were to be abrogated, respect for pending suits over old transfers cannot be assumed.
Now, the principal questions raised before us on behalf of the respondents were these: (1) whether Section 26-N was intended to apply to transfers made by an occupancy tenant to a co-sharer landlord and (2) whether the provision made in that section can override certain special clauses in the leases granted by the plaintiff''s predecessor to the defendants in respect of their six annas mokarrari interest by which the thikadars were expressly prohibited from permitting any new rights which were not in existence at the date of the lease to be created either directly or indirectly. Before dealing with the first question I wish to refer to Section 22(2), Ben. Ten. Act, which is applicable to Bihar and which has been reproduced verbatim in the new Bihar Tenancy Act. This sub-section runs as follows:
If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure holder, he shall be entitled to hold the land subject to the payment to his co-proprietors or joint permanent tenure holders of the shares of the rent which may be from time to time payable to them, and if such transferee sublets the land to a third person, such third person shall be deemed to be a tenure holder or a raiyat, as the case may be in respect of the land.
It has been held in a series of cases that this provision refers only to an occupancy holding which is transferable by custom and that it does not apply to a non-transferable holding. There can be no doubt however that it would apply to a nontransferable holding also if the cosharer landlord or permanent tenure holder to whom the holding is transferred can prove that the holding has been transferred to him with the consent of the other co-sharers or that the latter have waived their right to object to the transfer either expressly or by doing something which may amount to a recognition of the transfer.
Now, the words of Section 26-N which I have quoted already are very general and there is nothing in the section to restrict its application to those cases only where the holding is transferred to a stranger and not a co-sharer landlord. As however it has been rather strenuously contended on behalf of the respondent that such a view is opposed to the scheme of the Act, it becomes necessary to examine the contention. The argument which is put forward on behalf of the respondents in this connexion may be summarized thus: The Bihar Legislature in reproducing Section 22(2) in the new Act must be taken to have known the settled law on the subject and therefore it may be supposed that the position of the co-sharer landlords is the same in the new Act as it was under the Bengal Tenancy Act after the amendments of 1907. Under the latter Act, Section 22(2) could be of no avail to the co-sharer landlord, if the holding was not transferable and inasmuch as the distinction between transferable and nontransferable holdings is maintained by the new Act and there is no clear provision in Section 22(2) of the new Act to the effect that it must be read as subject to Sections 26-A to 26-N, it must be held that these sections were intended to affect) only a transfer between tenants inter se or between a tenant and a stranger and not a transfer between a tenant and a cosharer landlord or mokarraridar. The effect of amending Section 22 in 1907 was that an occupancy right ceased to exist when the occupancy holding was acquired by: (1) the sole landlord or the entire body of landlords; (2) the co-sharer landlord; and (3) the ijaradar. In the first case it merged in the superior right of the landlord and in the third case the acquisition of such a right was expressly prohibited. As to the second case the effect of a series of decisions of this Court as well as of the Calcutta High Court is that upon a co-proprietor purchasing an occupancy holding, the holding does not cease to exist but the right of occupancy does. Thus a person cannot be a co-proprietor as well as an occupancy raiyat and cannot avail himself of the provisions of Sections 26-A to 26-N which, as the language of Section 26-A shows, can apply only when an occupancy holding is transferred together with the occupancy right.
This argument may appear to be a plausible one, but it will not bear examination. It is true that Section 26.A provides that Section 26.B and the other connected sections which follow it, shall apply when the occupancy holding is transferred together with the occupancy rights therein. The language of Section 22(2) however also indicates that it applies only when the occupancy right in the land is transferred to a co-sharer landlord or permanent tenure holder. The fact that in-cases covered by Section 22(2) the occupancy right ceases to exist upon transfer by operation of law or by virtue of some specific provision in the Act will not prevent Section 26-A and the other sections connected with it from being applicable to such a case, because the tenant who sells the holding purports to transfer it together with the occupancy right in it. Besides there is nothing in the Act to suggest that the Legislature could have intended that the position of the co-sharer landlord when he acquires a raiyati holding should be worse than that of a third person acquiring such a holding. In my opinion therefore the defendants are entitled to the benefit of Section 26-N and they must be held to have the right to hold the disputed land on the terms stated in Section 22(2) of the Tenancy Act. As I have said, the main object of the section was to prevent titles which were acquired long before the passing of the Act from being assailed and it will be contrary to the spirit of the Act to allow the plaintiff to assail the disputed transfers most of which were made as long ago as between 1893 and 1909.
The next point to be considered is whether the provisions of Section 26-N can override the special provisions made in the various leases granted to the defendants in respect of the plaintiff''s six-annas mokarrari interest by which they were prohibited from permitting new rights to be created either directly or indirectly. It appears that between 1887 and 1916 no less than five leases were executed by the plaintiff''s predecessor-in-interest in favour of the defendants, these leases being Exs. 1, 1-a, 1-b, 4 and 1.c. The first four leases provide in clear terms that the lessee, his heirs, assigns or representatives shall not either directly or indirectly permit any new rights or tenure which were not in existence at the date of the lease to be created against the lessor and that if he or they shall create any new rights or tenures, the same shall be invalid and of no effect against the latter. In the last lease (Ex. 1-c) also which was granted to the defendant in 1916 the above provision is reproduced but it is made subject to the qualification that the lessees might permit new rights to be created with the consent of the lessor, such consent not to be withheld in a proper case. These provisions are clear enough and if the present suits had to be decided with reference to them alone, there was much to be said for the plaintiff''s contention. But here again we have to consider the effect of Section 26-N under which the plaintiff must be deemed to have given her consent to all the disputed transfers. It cannot be disputed that even if in spite of there being a provision in the leases to the effect that the defendants shall not permit any new right to be created, the defendants did create any right, those rights could not be questioned by the plaintiff if she had given her consent to their creation. It is equally plain to me that the same result will follow if under the statute she must be deemed to have consented to the creation of the new right. In my opinion, therefore, whatever the position of the parties may have been prior to the new Bihar Tenancy Act, there can be no doubt that by reason of this Act the defendants must be held to have acquired the right to hold the disputed land u/s 22(2) of the Tenancy Act.
It appears that during the cadastral survey proceedings of the year 1914 a dispute arose between the parties as to the bulk of the lands which are the subject matter of the present litigation. While on the one hand the defendants claimed them as their raiyati jote, the plaintiff''s predecessor-in.interest contended, on the other hand, that they were to be treated as bakasht of the 16 annas landlords. The survey authorities ultimately held that the defendants had the right to hold those lands which are the subject matter of Suit No. 46 u/s 22(2) and prepared a separate khewat in their name. As to the bulk of the lands of Suit No. 47, they held that the defendants had a non-occupancy right in them. So far as the last entry is concerned both parties are agreed that it was wrong in law and that it was probably based upon a misreading of certain decisions of the Calcutta High Court according to which a thikadar might acquire a non-occupancy right in land purchased by him during the subsistence of his lease. However that may be, it is clear that neither the lands of Suit No. 46 nor those of Suit No. 47 were recorded as bakasht and the plaintiff and her predecessor-in-interest did nothing between 1914 when the Record of Eights was prepared and 1929 when the present suits were brought to assail the entries in the Record of Rights. It is true that the defendants had been in possession of the entire mahal until 1925 but this did not prevent the plaintiff from disputing their claim in 1914. besides one would have expected that when in 1916 the plaintiff''s father granted a fresh lease to the defendants, the parties would have come to some understanding about these lands. In fact the defendants have led evidence to show that the lease was given to them after careful examination of the village papers and on the footing that they had a right to hold the lands according to the entries made in the survey papers; and the plaintiff, though she does not admit this fact has given no positive evidence to prove that the status attributed to the defendants in regard to the disputed land in the survey papers was brought into question on that occasion. I need not, however, pursue the matter as I have already held that Section 26. N is a complete answer to the plaintiff''s case.
It was argued before us that the lands of Suit No. 47 stand on a different footing from those which are the subject matter of Suit No. 46. As I have already stated these lands were differently recorded in the Record of Rights and it may also be mentioned that only a small proportion of these lands is proved to have been purchased by the defendants in execution of rent decrees and with regard to the remainder, it is not clear whether they were purchased in execution of rent or money decrees. It seems, however, that as Section 22(2) applies as well to voluntary transfers as to transfers made in execution sales, we cannot properly discriminate between these lands. The mere fact that the entries in the Record of Rights with regard to the lands of the two suits are not the same is not at all material, because it is both parties'' case that description of these lands as non-occupancy raiyati cannot be correct in law. The next important question relates to the amount of rent which the plaintiff is entitled to receive from the defendants That this is in fact the real question in the present litigation was made clear to us by the learned Counsel for the defendants in the course of his argument, it being also stated by him that he did not press his case for the joint possession of the disputed lands. Now, it is common ground that the defendants have, since their purchases, inducted a number of tenants on the lands and are realizing from them in the shape of rent higher sums than used to be paid by the occupancy tenants from whom the purchases were made. The plaintiff''s case is that she is entitled to a six annas share in the rend realized by the defendants from the sublessees, whereas the defendants'' case is that the plaintiff is entitled to a six sixteenths share of the sum which used to be paid as rent before the disputed lands were purchased from the original tenants.
Now the decision of the question as to which of these contentions is correct depends on the proper construction of the words:
subject to the payment to his co-proprietors or joint permanent; tenure-holders of the sharers of the rent which may be from time to time payable to them,
occurring in Section 22(2). In my opinion if Sub-section (2) is read along with the illustration which follows it, it will be tolerably clear that the word "rent" used in this sub-section means the rent which was payable in respect of the holding when it was transferred. The words "in respect of the holding" do not occur in the Sub-section (2) but they do occur immediately after the words "payable to them" in the illustration and this seems to me to indicate clearly that the rent referred to is the rent of the original occupancy holding and not the rent payable in respect of the tenancies that might be created after wards by the purchasing co-sharer. This view is in consonance with the object of the section which was to place the purchasing co-sharer more or less on the same footing as a third person acquiring an occupancy holding by transfer. It is clear that if a third person acquires an occupancy holding by transfer and settles the lands comprised in it with sub-tenants at a higher rent than was payable by the previous tenant to the landlord, the landlord will be entitled to realize only the rent which was formerly payable by the occupancy tenant for the holding and not the rent which is payable by the subtenants to the new transferee of the occupancy holding. If that is so, I do not see why the co-sharer should be in a worse position. It is for the co- sharer landlord who purchases the holding to decide whether he should cultivate it himself or settle it with tenants. The words in the first part of Section 22(2) are general and there is nothing in the sub-section to suggest that where a co-sharer purchases a holding, the rent which the other co-''sharers are entitled to get shall vary according to whether the purchasing co-sharer cultivates the lands himself or lets it out to other tenants. The latter part of the section which deals with the oases where the land is sublet to a third person, merely provides that the status of such third person would be that of a raiyat and does not provide that the other co-sharer landlords would be entitled to share the rent which may be payable by the sub-lessee. The view which I have expressed seems to have been taken also by the settlement authorities in the present case and the defendants have referred to this fact in para. 20 of their written statement. Counsel for the defendants however, lays considerable stress on the words "from time to time payable" which are used with reference to rent in Section 22(2) and points out that if the contention put forward on behalf of the defendants is accepted these words would become meaningless, inasmuch as the rent of an occupancy holding which is purchased by a co-sharer cannot be enhanced u/s 30, Ben. Ten. Act, firstly, because that section applies only when the holding is held at a money rent by an occupancy raiyat and therefore cannot be applicable when it is held by a co-sharer landlord; and, secondly, because a suit for enhancement cannot be maintained, unless all the landlords join and this is not practicable when one of the landlords has himself purchased the holding concerned. The answer given on behalf of the defendants is that the words "from time to time" may refer to the fact that the rent of the holding is payable periodically, that is to say, either year by year or according to fixed instalments and alternatively that the rent may in some oases (e.g. in the case of diluvion) be liable to abatement not upon any specific provision of the Bengal Tenancy Act but upon the principles of justice, equity and good conscience. I am however not altogether satisfied that the framers of the Act had in view only the contingencies referred to on behalf of the defendants. In my opinion the section has not been happily drafted and probably it never occurred to those who drafted it that there would be any legal difficulty in enhancing the rent of the holding after its transfer to a co-sharer landlord. However that may be, as the question of the enhancement of rent does not arise in the present case, I do not wish to express any definite opinion upon it at this stage. It is enough to say that whatever may be the real significance of the words "payable from time-to time" as used in Section 22(2) and whether or not the co-sharers other than the purchaser of an occupancy holding are entitled to claim enhancement of rent under the provisions of the Bengal Tenancy Act or on general principles, one may safely lay down the negative proposition that if the purchasing co-sharer sublets the land to a third person and realizes from him a higher rent than that paid by the original tenant, the other co.sharers are not entitled under this section to realize from the purchasing co-sharers their share of such rent.
I notice that both in East Bengal and Bengal Section 22(2) has been re-cast and in the section which is applicable to East Bengal it is clearly provided that if the occupancy right is transferred to a co-sharer landlord or permanent tenure, holder, such a person shall hold it as proprietor or tenure-holder and shall pay to his co-sharers a fair and equitable sum for use and occupation of the same. Even however if I were inclined to hold that the meaning of the section which we are asked to construe in this case implies what has been made explicit in the Act applicable to East Bengal, I would not hold that the fair and equitable sum will necessarily be his quota of the amount which the purchasing co-sharer may realize from his sub-lessees. To take such a view will be to hold that the other co-sharers are entitled to nothing less than joint possession which could not have been intended by the framers of the Act. The plaintiff has also placed before us no adequate materials for the assessment of fair and equitable rent and I think that in the absence of any specific evidence on the point, the plaintiff is entitled only to her share of the rent which used to be paid by the occupancy tenants who previously held the land. The defendants have included in their written statement a schedule of such rents and as the correctness of the figures mentioned therein has not been challenged a decree will be awarded to the plaintiff for her share of those amounts.
The only other questions which arise in this case are whether the plaintiff''s claim for the rent of 1333 is barred by limitation and whether the plaintiff is entitled to interest upon the arrears of rant. The first point is the only point which now arises for consideration in connection with the cross-objection filed by the plaintiff and it being conceded now on behalf of the defendants that the claim for the rent of 1333 is not barred, the cross-objection is allowed. So far as the other point is concerned, the defendants contend that inasmuch as they had tendered rent from time to time to the plaintiff and the latter had not accepted them no interest should be charged. There is no doubt some evidence to show that the tender was made and it is also not disputed that the amounts tendered were generally the amounts which the old tenants of the disputed holding used to pay. In my opinion however the judgment of the Subordinate Judge who has held that the plaintiff is entitled to charge interest on the amount due to her should be upheld for the following reasons: (1) But for the new Bihar Tenancy Act the plaintiff would have been entitled to joint possession of the lands or in the alternative to realize her quota of the rent realized by the defendants from the tenants inducted by them inasmuch as the lands were not transferable and the defendants could not under Act as it stood before 1934 acquire the right to hold them u/s 22(2). The defendants admittedly tendered the amounts which they allege to have tendered before the passing of the new Act -and at that time the tender was not valid and the plaintiff was entitled not to accept the amounts offered to her. Besides as the plaintiff never had the use of the money which the defendants are now liable to pay to her as rent, there seems to be no good reason for dismissing her claim for interest. (2) The defendants ''have not offered any definite evidence of the amounts actually tendered by them and unfortunately the learned Subordinate Judge has recorded no finding as to the exact amounts so tendered. The defendants have stated in their supplementary written statement of 31st August 1932 that some of the lands of village Amra and Rampur Wyna have diluviated and the plaintiff is not entitled to the rent of the entire holding in these villages. These allegations not having been substantiated it is clear that if the defendants tendered rent according to their present case the plaintiff was entitled not to accept it.
I would therefore allow the appeals and cross objection in part, set aside the decree of the Court below and direct that a decree for rent be passed in favour of the plaintiff for the years 1333 to 1336, the rent of the disputed land being calculated according to the schedule appended to the written statement and on the basis that no part of the disputed land has diluviated. This will however not apply to the bhaoli lands, viz., khatas Nos. 51 and 52 of mauza Gauhara which are the subject matter of Suit No. 47 as regards which the decree of the trial Court will stand. The interest on the arrears of rent shall be calculated at 12� per cent, per annum as provided by the learned Subordinate Judge and the plaintiff shall be entitled to proportionate costs in both the Courts. The other reliefs claimed by the plaintiff would be disallowed.
Dhavle, J.--I agree.
The new Section 26-N introduced by the Amending Act of 1934 in effect makes transfers of occupancy holdings (with the right of occupancy therein) effected before 1st January 1923 valid against the landlords, for it provides that the landlord shall be deemed to have given his consent to the transfer in such oases. Reading this section with Sections 26-B and 26. A it is clear that these transfers are not restricted to any particular classes of transferees and may as well be in favour of a co-sharer landlord as of a stranger. Section 22 deals with a rather different matter --"Effect of acquisition of occupancy right by landlord" -- a marginal note which gives the scope of the section accurately enough as far as it goes, and which may, I think, be referred to for the reasons given in Ram Saran Das Vs. Bhagwat Prasad and Another . The first clause of this section originally provided that if the interest of the raiyat in an occupancy holding is transferred to a (sole) proprietor or permanent tenure-holder, the occupancy right shall cease to exist. As a result, it was held in several cases that upon such a transfer the tenancy subsisted (in the hands of the proprietor or permanent tenure-holder) divested of the incidents of occupancy; but the amendment of 1907 provided that the transferee is to have no right to hold the land as a tenant and is to hold it as a proprietor or permanent tenure holder as the case may be, without prejudice to the rights of any third person.
The position of a co-sharer landlord or permanent tenure-holder dealt with in 01. (2) was different, as (even if the occupancy right ceased) a'' tenancy was still possible under the other proprietors or permanent tenure-holders. The section did not purport to be confined to transferable holdings, but it contemplated valid transfers from occupancy raiyats. No question of the landlords'' consent could arise in the case of occupancy holdings which were transferable by custom or which were purchased in rent executions, though under the original 01. (2) the occupancy right ceased to exist as in the case of a transfer to a sole proprietor or permanent tenure-holder. In the case of a non-transferable occupancy holding transferred to a Cosharer landlord with the consent of the other co-sharer proprietors or permanent tenure-holders, the transfer would be equally valid, and I am not aware of any reason why the second clause of Section 22 should not apply to it. In Naga Rai v. Buchi Rai (1936) 18 PLT 173, where a part of a non-transferable holding had been transferred in 1908, Wort, J. made similar observations which were endorsed by the learned Chief Justice and James, J. in the appeal under the Letters Patent. The status of a co-sharer transferee under this clause has been discussed in many reported decisions, where it has been described as peculiar: see for example Jhapsi Sao v. Mt. Bibi Aliman AIR 1926 Pat 263 and Kirtyanand v. Ram Lal AIR 1926 Pat 580. Under the amendment of 1907 he holds the land
subject to the payment to his co-proprietors or joint permanent tenure-holders of the shares of the rent which may be from time to time payable to them.
I can see nothing in this provision or in Section 26. N or in the history of our tenancy legislation to disentitle a co- sharer transferee to the benefit of Section 26-N, merely because the holding is non-transferable though the transfer is supported by the actual or presumed consent of the other co-sharers. Much stress was laid on the fact that Illus. 1 to Section 183, which refers to a usage under which a raiyat may be entitled to sell his holding without the consent of his landlord, is still a part of our Act; but I am unable to see any reason in this to disentitle the co-sharer transferee to the benefit of Section 26.N or Section 22(2). If, as is argued, the Legislature must be taken, when it enacted Section 26-N, to have been aware of the view taken in the Courts regarding the scope of Section 22, it was also plainly aware that the transfer of a non-transferable holding is validated as against the landlord by his consent, and the Illustration has no bearing on non-transferable holdings for the transfer of which the new legislation has provided the presumed consent of the landlord on certain conditions. It has also been urged that Section 22(2) contemplates a rent which may be enhanced u/s 30 or altered in other ways: (Raghunandan v. Lalit AIR 1984 Pat 542, a decision which must be read with Dukha Lal 7. Mt. Manabati AIR 1936 Pat 341).
But it seems to me that in the provision that the co-sharer transferee holds subject to the payment "of the shares of the rent which may be from time to time payable to them," the plural "Shares" is used because the payment is to be made to "his co-proprietors or joint permanent tenure-holders." This rather suggests that the adjectival clause "which may be from time to time payable to them" goes not with "the rent" but with "the shares". The whole rent is never "payable" since the transferee is himself a co-sharer. The adverbial expression "from time to time" before "payable" on which the whole argument is based is not unintelligible without any reference to possible variations in the rent, since the "rent" would in any case be payable from time to time, to say nothing of the fact that the shares of the co-proprietors or the joint permanent tenure-holders may quite easily vary from time to time. The co-sharer transferee was clearly not intended to occupy the position of an occupancy raiyat vis-a-vis his co-proprietors or joint permanent tenure-holders, and "the shares of the rent" payable by him could not, it seems to me, but refer to the rent that before the transfer was payable by the transferor tenant. The liability to enhancement of rent u/s 30 would naturally disappear with the extinction of the occupancy right, and if the co-sharer transferee did not settle the land with a third party, "the rent (of which share were to go to the proprietors or joint permanent tenure holders) would be the rent that the occupancy raiyat used to pay before the transfer. I can find nothing in 01. (2) of Section 22 to give the proprietors or joint permanent tenure-holders varying rights according as the co-sharer transferee keeps the land himself or settles it with third parties. It is therefore impossible to allow the claim of the plaintiff to a share of the rents that were actually realized by the co-sharer transferee.
As regards the clause in the defendants'' leases against permitting new rights to be created either directly or indirectly, my learned brother has pointed out that no question can arise if under the law as it now stands the plaintiff is to be deemed to have given his consent to the transfers obtained by the lessee, who moreover happened to be a co-sharer. There is also another consideration relating to the scope of the clause itself. In my opinion, it may well be doubted whether the lessee can be properly said to have permitted new rights to be created either directly or indirectly within the meaning of that clause, merely because he proceeded against the tenants in money executions and purchased their holdings. It is true that as a result of these purchases he in his capacity of co-sharer landlord acquires a peculiar status under the Tenancy Act as it stands at present, but this is entirely due to the operation of the law, and the clause, in spite of the amplitude of its language ("permitting new rights to be created either directly or indirectly") could not have been intended to bar to the lessee the relief that an ordinary creditor may obtain from the Courts together with the consequence following from it under our tenancy legislation. It will be unreasonable to construe the clause in such a way as to prohibit routine zamindari operations, and this was in fact conceded by the learned Counsel, who could not suggest what the lessee was to do under the lease to a tenant who fell into arrears and against whom a rent decree or execution could not be obtained for some reason (as does'' happen sometimes). The lessee was a co-sharer landlord to the lessor''s knowledge, and it cannot be contended that the leases disentitled him to obtain or exercise rights accruing to him in the latter capacity u/s 22(2).